(a) Pretrial conferences; objectives. In any action, the court may in its discretion direct lead counsel or other attorneys for the parties and any self-represented parties to appear before it for a conference or conferences before trial for such purposes as
(1) expediting the disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and
(5) facilitating the settlement of the case.
(b) Scheduling and planning.
(1) ISSUING ORDER. Except in cases exempted by the Rules of the Circuit Courts of the State of Hawai‘i, the court must issue a scheduling order after consulting with the parties’ attorneys and any self-represented parties at a scheduling conference.
(2) TIME TO ISSUE. The court must issue the scheduling order as soon as practicable, but unless the court finds good cause for delay, the court must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.
(3) CONTENTS OF THE SCHEDULING ORDER.
(A) Required contents. The scheduling order must:
(i) set the date for trial;
(ii) limit the time to join other parties, amend the pleadings, complete discovery, and file motions;
(iii) either assign, or specifically decline to assign, the case to the expedited track under Rule 16.1 of these Rules; and
(iv) include other matters required by the Rules of the Circuit Courts of the State of Hawai‘i.
(B) Permitted contents. The scheduling order may:
(i) modify the timing of disclosures under Rules 26(a) and 26(e) of these Rules;
(ii) modify the extent of discovery;
(iii) provide for disclosure, discovery, or preservation of electronically stored information;
(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced;
(v) direct that before moving for an order relating to discovery, the movant must request a conference with the court;
(vi) set dates for pretrial conferences, including a final pretrial conference;
(vii) set deadlines for the exchange and submission of trial materials, including exhibits, stipulations, depositions and trial preservation testimonies, proposed jury instructions, and proposed questions for jury selection; and
(viii) include other appropriate matters.
(4) SCHEDULING CONFERENCE. Within the earlier of 14 days after any defendant has been served with the complaint or has appeared, the plaintiff shall file a notice requesting a Scheduling Conference to be set by the court. The court shall then issue an order or a notice setting the Scheduling Conference date. The plaintiff shall promptly serve the order or notice issued by the court setting the Scheduling Conference date on all parties who have been served with the complaint, except those who have appeared in the case before the order or notice was issued. The Scheduling Conference shall be attended by each party who has appeared in the case or that party’s lead counsel. In a case with multiple defendants, where despite plaintiff’s diligent efforts it appears likely that not all defendants will be served with the complaint prior to the first Scheduling Conference, the plaintiff may request that the Scheduling Conference be rescheduled to allow additional time for service.
(5) MODIFYING A SCHEDULE. A schedule may be modified only for good cause and with the judge’s consent.
(c) Subjects for consideration at pretrial conferences. At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to
(1) the formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
(4) the avoidance of unnecessary proof and of cumulative evidence, and limitations or restrictions on the use of testimony under Rule 702 of the Hawai‘i Rules of Evidence;
(5) the appropriateness and timing of summary adjudication under Rule 56;
(6) the control and scheduling of discovery, including orders affecting disclosures and discovery pursuant to Rule 26 and Rules 29 through 37;
(7) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
(8) the advisability of referring matters to a master;
(9) settlement and the use of special procedures to assist in resolving the dispute when authorized by statute or rule;
(10) the form and substance of the pretrial order;
(11) the disposition of pending motions;
(12) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) an order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;
(14) an order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(15) an order establishing a reasonable limit on the time allowed for presenting evidence; and
(16) such other matters as may facilitate the just, speedy, and inexpensive disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.
(d) Final pretrial conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.
(e) Pretrial orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
(f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Amended May 15, 1972, effective July 1, 1972
further amended December 7, 1999, effective January 1, 2000
further amended October 8, 2020, effective January 1, 2021
further amended November 5, 2020, to extend effective date to July 1, 2021
further amended March 30, 2021, to extend effective date to January 1, 2022
Rule 16 opens by letting the court call pretrial conferences to expedite a case, control it before it drags on, cut wasteful pretrial activity, sharpen the issues for trial, and encourage settlement. It then requires more: except for exempted cases, the court must consult the parties and issue a scheduling order, generally within 90 days after a defendant is served or 60 days after a defendant appears. That order must set the trial date, limit the time to join parties, amend pleadings, complete discovery, and file motions, and decide whether the case goes on the expedited track under Rule 16.1; it may also address electronically stored information, privilege agreements, and a long list of other case-management details.
At any pretrial conference, the court can act on a wide range of subjects, including simplifying the issues, encouraging stipulations and admissions, scheduling discovery, referring matters to a master, considering settlement, and setting up special procedures for a complex case. A final pretrial conference, held close to trial, produces a plan that controls how the trial proceeds unless later modified to prevent manifest injustice. If a party or attorney fails to obey a scheduling or pretrial order, misses a conference, or isn't prepared to participate in good faith, Rule 16(f) lets the judge issue sanctions under Rule 37(b)(2)(B)-(D) and generally requires the noncompliant side to pay the resulting reasonable expenses, including attorney's fees, unless the noncompliance was substantially justified.